Presented by: The Human Rights Institute at Columbia Law School, the ACLU, the Roger Hertog Program on Law & National Security at Columbia Law School, and the International Network of Civil Liberties Organizations

Speakers: Robert Litt, General Counsel to the Office of the Director of National Intelligence; Jameel Jaffer, Deputy Legal Director & Director of Center for Democracy, American Civil Liberties Union

Editors, Guests, and Friends

Last Monday morning, as a military judge read each of the men accused of plotting the 9/11 terrorist attacks their rights to attend the hearings in their case, two of them objected.

Reading paragraph six of his usual script, Judge James Pohl, presiding over the makeshift Guantanamo Bay court, told the defendants “Your failure to meet with and cooperate with your defense counsel may also negatively affect the presentation of your case.”

Khalid Sheikh Mohammed, seated next to his lawyer in his trademark camouflage vest and long dyed-red beard, grew alarmed. “I also have an inquiry regarding Item Number 6, not meeting with our lawyers may negatively affect our case,” he said, through an interpreter. “In reality, during the meetings we are never allowed to get any papers from our lawyers.”

The judge, Army Colonel James Pohl, interrupted him. “Mr. Mohammad, I’m not here to discuss a legal issue with you. If you wish to raise that issue about your ability to work with your lawyers, you talk to your lawyers, your lawyers raise it to me. I’m simply giving you your rights to be absent. That is the only thing I’m doing at this time. I’m not discussing any type of legal issue with you.”

When it was his turn, Ramzi bin al Shibh, the accused financier of the case, expressed his own confusion. “I don’t understand,” he said in English in response to the judge’s question whether he understood his rights. Judge Pohl quickly interrupted him: “Thank you. No, we are done.”

Bin al Shibh tried to explain, but Pohl wouldn’t let him speak.

“You don’t understand this. When I say we are done, we are done,” Judge Pohl said firmly. “I asked you a simple question, whether you understood it or not. You said no, you don’t.”

As he had with Mohammed, Judge Pohl instructed bin al Shibh’s lawyer that his client would therefore have to be present at every hearing.

Bin al Shibh tried again: “I understand I have the right to talk,” he said.

“No, you don’t have the right to talk,” said Judge Pohl. Bin al Shibh insisted again again that he did.

“No, you don’t,” Judge Pohl repeated. And with that, he instructed the guards to forcibly remove the defendant from the courtroom “for disruptive conduct.”

It’s always surprising to hear directly from a defendant in a criminal pretrial proceeding. It’s particularly surprising when it’s one of the 9/11 accused in the Guantanamo Bay courtroom, since they were hidden from the public for so long. Their initial years in US custody were spent in secret offshore CIA interrogation sites, where they were subjected to “enhanced interrogation techniques,” including torture. For the last several years they’ve all been locked up in the highest-security camp at Guantanamo Bay. When they do attend their hearings, they’re usually silent, and let their lawyers do the talking for them. So just hearing them speak at all is startling.

Upon reflection, though, the two defendants’ unexpected outbursts on Monday weren’t that surprising.

Defense lawyers had been objecting for months that restrictions on their ability to meet with the five accused men at Guantanamo – including an inability to share documents without them being screened by Guantanamo security teams — was making it impossible for them to meet their ethical obligations to effectively represent their clients.

David Nevin stood up at the hearing last week to explain. “Your Honor,” he began, “Here’s the problem. The way . . . paragraph 6 is worded, ‘you have the right to meet with your attorneys, and if you don’t meet with them, it will negatively affect your defense, . . . It strikes me that the primary point of the admonition is that he has the right to meet with counsel and a right to be present here.” Given the limitations on meeting with counsel, Nevin explained, his client was reasonably objecting that he wasn’t really being given that right.

“The point is,” said Nevin, “our meetings are very constrained with Mr. Mohammad and we are unable to give him things — we’re unable to exchange information in the present environment.” He noted that he was even unable to give his client a document filed by the government in his own case, for example, for a motion schedule to be argued that week.

“These meetings are not what they appear to be, they’re not what they’re cracked up to be, and our representation of Mr. Mohammad is not what you would expect if you were looking at an ordinary court-martial situation or an ordinary criminal action in state court in the United States or in federal court. And that, I think, is the point that Mr. Mohammad wanted to make to you.” In other words, Nevin explained, his client did not want to be seen as agreeing to give up his right to meaningful legal representation.

To some extent, this is a sign of progress: Khalid Sheikh Mohammed has gone from rejecting the court proceedings outright to trying to understand and insist on his rights to participate in them.

When the five men were arraigned in May of last year, their collective disdain for the process was obvious. The men refused to respond to Judge Pohl’s questions, refused to wear the earphones that would allow them to hear the proceedings’ translations, and refused to enter any pleas in the case. Ramzi bin al Shibh shouted out interruptions in English, then later stood up and dropped to his knees in prayer. At one point, Mubarak bin ‘Attash made a paper airplane and placed it on top of a microphone. It was removed after a translator complained about the sound the paper made. Due in part to these antics, the arraignment took 13 hours to complete, extending well into Saturday night.

Since then, the five co-defendants have been relatively well-behaved in court. The military commission itself, however, is in disarray.

Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA was secretly monitoring the hearings and, unbeknownst to the judge, had the ability to censor the audio feed heard by observers; and that the meeting rooms where defense lawyers met their clients had been secretly wired with video and audio monitors, hidden in devices made to look like smoke detectors. In addition, all legal mail is screened by government security personnel, and documents previously deemed acceptable were later confiscated from the defendants’ prison cells without explanation; those documents included a detainee’s own hand-written notes or a photograph of the grand mosque in Mecca.

Lawyers have complained that they can’t bring their spiral-bound notebooks in to client meetings because guards consider the wire binding “contraband” and confiscate them; that their clients aren’t allowed to call them on the telephone; and that they can’t bring mitigation experts in to hear from their clients about their abusive treatment in CIA custody because all such information is considered classified.

At a hearing in August, defense lawyers were so concerned about computer problems and resulting security breaches that they urged Judge Pohl to postpone all pre-trial proceedings in the case until the government could provide them a new computer system.

Indeed, the technology problems defense lawyers have contended with has been astounding. Testimony from the military commissions’ chief defense counsel this month revealed that defense attorneys’ e-mails sent on the Pentagon-provided computer network had been accessible to prosecutors, while thousands of others had simply “disappeared into the ether.” Defense lawyer Cheryl Bormann, representing Walid bin Attash, complained that volumes of case-related investigatory material – totaling about 7 gigabytes — had disappeared from her computer and could not be retrieved.

One reason they couldn’t be retrieved, we learned from an Office of Military Commissions (OMC) official testifying last week, is that the Pentagon’s IT office did not back up the OMC computer system between December 28, 2012 and April of 2013. Backups are supposed to happen every 24 hours.

“One of most important things we do as an IT organization,” testified Scott Parr, chief of OMC’s Information Technology services, “is to provide the backups.” But for four months, they didn’t happen.

Major Jason Wright, a military defense attorney for Khalid Sheikh Mohammed, described at an August hearing how a case-related computer search by someone on his legal team had caused a Pentagon official to search that individual’s computer system. And the chief defense counsel, Air Force Col. Karen Mayberry, confirmed at the September hearing that Major Wright’s files had mysteriously appeared on the computer of another government employee in another government agency altogether.

And at one point, Mayberry testified, “The entire e-mail record of a former prosecutor appeared on our share drive.”

As a result of this and other demonstrated breaches of confidentiality, Col. Mayberry in April ordered all defense attorneys to stop using the government computer system for case-related matters altogether.

“We were basically put back in the 19th century,” said Wright.

Because they couldn’t be sure they were complying with attorney-client confidentiality requirements using the Pentagon’s computer system, defense lawyers now had to hand-write legal briefs, drive to Starbucks to send e-mails from their personal laptops, and struggle to reconstruct lengthy legal documents that had disappeared from their computers without explanation.

“In this day and age you cannot practice law in this way in any case,” Nevin told the court in August. “Not a shoplifting case in Boise, Idaho” and certainly not this death penalty case.

I’ve watched these hearings since their inception, and there’s no sign that the military commission system is getting any better. Whether it’s the logistics of running a multi-defendant capital case in a makeshift courthouse on a remote military base in a foreign country with which we have no relations; the difficulties of applying a new federal law (the Military Commissions Act) and procedural code without any precedent to what may be the most complex criminal case in American history; or the challenge of doing all of this with military personnel who have little or no experience with the requirements of the American criminal justice system — what’s plain is that it’s not working. At the Guantanamo Bay military commission, a case that in a U.S. federal court would be moving smoothly and expertly through discovery, a trial and sentence gets bogged down at every step. A trial that in a U.S. federal court would be moving smoothly and expertly through discovery, a trial and sentence at the Guantanamo Bay military commission gets bogged down at every step.

It’s time for the government to cut its losses: move the 9/11 case to a real federal court, where we can finally get on with it. There’s nothing wrong with admitting this was all a big mistake. Given how many people and government branches have their fingerprints on it, everyone involved will find someone else to blame.

As a practical matter, moving the case to the United States now wouldn’t be particularly difficult. The military prosecutors have all been heavily assisted by Justice Department counsel, who would surely remain involved. Most of the lead defense lawyers, too, are civilian, and would presumably stick with the case, happy to do their work much more easily in the Continental United States without risking disbarment for breaching their ethical obligations.

The major newcomer to the case would be the judge – an Article III life-tenured federal judge with experience trying complex terrorism cases, applying the Classified Information Procedures Act, handling obstreperous defendants, and presiding over the presentation of reams of evidence detailing a complex international conspiracy. That’s exactly who’s needed here.

While we’re at it, no other terrorism cases should be brought in the Guantanamo commissions, either. U.S. federal courts have safely handled hundreds of these cases; it’s time to stop trying to re-invent the wheel.

Of course, this would require an act of Congress—no easy feat in this political climate. Currently, federal law prohibits the transfer of any Guantanamo detainees to the United States, even for trial. And some in Congress are loathe to do anything that President Obama once supported. But if any of them actually watched some of these hearings, they’d have to agree: the military commissions are a fiasco and an embarrassment. Keeping the most important terrorism trial in U.S. history in this obviously second-rate court system will ultimately do major damage to the United States and the integrity of our justice system.

That legacy will stretch far beyond President Obama’s term in office. And it will stain the hands of everyone who allowed it to happen.

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